Cheatham v. Rowland

• Decision Date: 08 March 1890
• Citation: 105 N.C. 218,10 S.E. 986
• Court: North Carolina Supreme Court
• Parties: Cheatham v. Rowland.

10 S.E. 986

(105 N.C. 218)

Cheatham

v.Rowland.

Supreme Court of North Carolina.

March 8, 1890.

Pleading—Admissions—Arbitration.

In an action for part of the earnings of a saw-mill operated by plaintiff and a firm of which defendant was a member, defendant pleaded in bar that the cause of action had been submitted to arbitrators and considered by them before making their award. Held, that a further allegation in the answer, that " although there had been a settlement of these matters, and that plaintiff was given time by the arbitrators to bring in all claims of every description he had against defendant before them, defendant had never had any notice of such claim, " could not be construed into an admission that the cause of action had not been submitted to or passed on by the arbitrators.

Appeal from superior court, Vance county; R. F. Armfield, Judge.

T. T. Hicks, for appellant.

Day & Zolli-cofler, for appellee.

Merrimon, C. J. The following is a copy of the case settled on appeal: " The action was brought to recover of the defendant one-fourth of the net proceeds of sales of lumber sawed by plaintiff and the firm of Cheatham & Rowland at their saw mill between February 27, 1883, and January 1, 1884; said saw-mill being then owned, one-half by plaintiff, and the other half by the defendant and A. F. Cheatham, then partners as a firm of Cheatham & Rowland. The amount alleged to be due was $450, with 8 per cent, interest from January 1, 1884, till paid; also, for one-half of the proceeds of sale of a house at said mill sold by defendant, January 25, 1884, for $30. Plaintiff further claims that the said firm of Cheatham & Rowland dissolved on January 1, 1884, and that on November 23, 1886, partition was made between the members of said firm of the partnership real estate, and that on said last-named date the defendant and said A. F. Cheatham executed a deed in trust on their several shares of the partnership real estate, then divided, to secure and pay their proportionate parts, one-half each, of any debt then owing by the said late firm of Cheatham & Rowland, whether to plaintiff or any other person. This deed is dated November 23, 1886, and was recorded the same day, and is made a part of the complaint. The defendant answered, admitting the partnership, but denying the debt, and set up as a bar to the action an arbitration and award, and the plea of the three-years statute of limitations. Plaintiff replied that the subject-matter of this action was not considered nor passed upon by said arbitrators, and that the deed in trust made a part of the complaint was executed by defendant at and immediately after the payment to plaintiff by defendant of the amount awarded to him by said arbitrators to secure the payment to plaintiff and defendant of any and all sums that were still unsettled between them arising prior to said date, November 22, 1886. As to the plea of the statute of limitations, plaintiff replied that the defendant agreed to pay said debt within three years, as appears by the terms and conditions of said deed in trust, and insisted that plaintiff and defendant, being tenants in common of said saw-mill, the statute would not begin to run until after a demand; no demand having been made till September 6, 1888. His honor submitted to the jury the following issues, stating that the burden was on defendant, and that if they were found in plaintiff's favor there must be a reference to state the account: 'Has there been an arbitration and award covering the subject-matter of ' this action, or any part of it; and, if any part of it, what parts? Is the plaintiff's cause of action, or any part of it, barred by the statute of...